Court hears FCC, CBS on indecency case


PHILADELPHIA -- CBS took many precautions before the 2004 Super Bowl halftime show that aired with Janet Jackson's "wardrobe malfunction," an attorney for the company said Tuesday.

The broadcaster is challenging a $550,000 fine issued by the FCC. The two sides offered arguments before three federal appeals judges who must decide whether the brief glimpse of Jackson's barely covered breast was indecent, or merely a fleeting and accidental glitch that shouldn't be punished.

CBS Corp. lawyer Robert Corn-Revere said the network took many precautions, including choosing Jackson and Justin Timberlake over more provocative performers, reviewing the script, voicing concerns about ad-libbed remarks and applying a 5-second audio delay.

"I think the precautions CBS took even satisfied the FCC's standards," Corn-Revere said.

FCC lawyer Eric Miller argued that CBS was indifferent to the risk that "a highly sexualized performance" might cross the line.

Timberlake sang the lyrics, "Gonna have you naked by the end of this song," and that's exactly what happened, Miller said.

CBS should have known ahead of time what it was going to broadcast, the FCC said. The commission noted that Jackson's choreographer was quoted three days earlier as saying the performance would include "some shocking moments."

The case is the second recent test of the federal government's powers to regulate broadcast indecency. Last June, a federal appeals court in New York invalidated the government's policy on fleeting profanities uttered over the airwaves.

Some 90 million Americans watched Timberlake pull off part of Jackson's bustier, briefly exposing her right breast, which had only a silver sunburst "shield" covering her nipple, during the halftime show. The episode was later explained as a problem with her costume.

CBS challenged the FCC's fine, claiming "fleeting, isolated or unintended" images should not automatically be considered indecent. The agency noted it has long held that "even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness."

Miller argued that Jackson and Timberlake were employees of CBS and that CBS should have to pay for their "willful" actions, given the network's lack of oversight.